Defendants’ Statement and Proposal:
Defendants believe that a claim construction order from the Court would narrow the
issues in dispute, decrease the scope of discovery necessary for trial, and likely lead to settlement or resolution of the case with respect to at least some of the Defendants. Defendants further believe that there is a significant likelihood that a claim construction order from the Court could be dispositive as to Defendants’ liability on one or both of the patents-in-suit, rendering the damages and willfulness cases moot. Accordingly, Defendants’ proposed schedule seeks phased discovery, staggering the timings of discovery on liability issues and discovery on damages and willfulness issues based on the date of the Court’s claim construction order. Defendants believe that such sequencing of discovery schedule will help streamline this complex patent case
involving a large number of defendants from all over the world and numerous accused products. Furthermore, it will minimize the potentially unnecessary discovery burdens on all parties if the Court’s claim construction order is case dispositive.
For these reasons, Defendants propose the following schedule for this case:
a. September 17, 2010 – Fact discovery on liability issues begins.
b. Mediation or Settlement Conference: to be scheduled by the Court within 30 days
after the Court issues a claim construction order.
c. 30 days after Court issues a claim construction order:
(i) Deadline for parties to consider and formulate a stipulation for immediately
appeal the Court’s claim construction order to the Federal Circuit should any claim
construction issue be case dispositive. The parties are required to meet and confer to
determine whether any issues are case dispositive. If it is determined by the Court
that a party does not meet and confer in good faith over whether any issues are case
dispositive, this will be considered by the Court in determining whether this is an
exceptional case under 35 U.S.C. § 285; and (ii) Fact discovery on damages issues begins.
d. 60 days after Court issues a claim construction order: All fact discovery on liability
issues must be completed (including deposition of all fact witnesses on liability
issues).
e. 120 days after Court issues a claim construction order - All fact discovery on
damages/willfulness issues must be completed (including deposition of all fact
witnesses on damages/willfulness issues);
[para's f.g.h. all absent from Document 314]
i. 140 days after Court issues a claim construction order – Opening expert reports.
j. 170 days after Court issues a claim construction order - Rebuttal expert reports.
k. 200 days after Court issues a claim construction order - All expert discovery must be
completed.
l. 207 days after Court issues a claim construction order - Deadline for filing dispositive
motions
m. Pretrial Conference: to be scheduled by the Court
n. Trial Date: to be scheduled by the Court
